United States v. Gomez

763 F.3d 845 (7th Cir. 2014)

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Nature of the Case

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Facts

Agents suspected D of involvement in a cocaine-distribution ring. A wiretap of Romero revealed a reseller named 'Guero.' The agents believed that D was Guero. When Romero and D scheduled a deal on September 3, the agents followed Romero who parked his car on a street near D's house. The two men had a brief conversation next to Romero's car and then left the scene on foot. D walked right past the DEA agents, who stopped him to confirm his identity. Pretending to be part of an antigun task force, they patted him down and asked for his name, address, and telephone number. D gave the same number Guero used to arrange the sale that day. The agents let him go and D walked home. Agents then watched as D drove a green minivan down the street and picked up Romero. The two men drove to a nearby restaurant and grocery store, where they met Reyes (Gomez's brother-in-law and housemate). Surveillance continued as the three men left and went their separate ways. Reyes drove away in a tan Suburban and was stopped and identified by a DEA agent. D and Romero must've been spooked because neither of them returned to the white Mercedes. Agents seized Romero's car an hour later still parked where he had left it. They found a quarter kilogram of cocaine in the trunk. Almost four weeks later federal agents arrested D at his home. On the kitchen table were D's wallet and the cell phone Guero had been using since September 3. When agents searched D's bedroom, they found a shoe box filled with documents addressed to D, including a phone bill for one of the three cell phones Guero had used up until September 3. All three cell phones were registered under Reyes's name, records from the cellular-service provider confirmed that the billing statements were addressed to D. Agents also found a small quantity of cocaine in the pocket of a pair of pants in D's bedroom. Agents played three of the recorded phone calls, including the one describing the events of September 3. D identified his own voice as Guero on all three. D was charged with conspiracy to possess cocaine with intent to distribute, and three counts of using a telephone to facilitate a drug crime. D's defense was mistaken identity. D argued that P would never be able to show him in possession of cocaine. P sought to introduce the small quantity of cocaine found in D's bedroom at the time of his arrest. Gomez objected on Rule 404(b)(1) grounds. The court admitted the evidence to show D's identity as Guero. The jury convicted D on all counts. D challenged the admission of the other-act evidence-the cocaine found in his bedroom on the day of his arrest. The court affirmed the decision was vacated D was granted a rehearing en banc.